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Invasive and ineffective: BC’s first-responder bill denounced

'We think it's a crude overreaction,' says BCCLA director

Not only would Bill 39's compulsory testing invade people's privacy, but it doesn't even make sense medically, says Ken Buchanan, chair of Positive Living BC. Credit: Leah Bromley photo

Health and privacy rights advocates are lambasting a controversial bill that would force blood tests on patients whose bodily fluids come in contact with first responders.

HIV/AIDS groups, the BC Civil Liberties Association, the provincial privacy commissioner and the provincial health officer say the bill, introduced last week by BC Labour Minister Margaret MacDiarmid, is ineffective and invasive.

“We think it’s a crude overreaction,” says Micheal Vonn, policy director for the BC Civil Liberties Association. “It’s unjustified and unnecessary, and it takes very, very cavalierly the legal and ethical doctrine of informed consent.”

If passed, Bill 39 would allow emergency workers to ask the court to force patients to get tested if their bodily fluids come in contact and there’s a suspicion they might have a communicable disease. The patient would be notified four days before going to court. The law would then require disclosure of the test results to the emergency worker, the patient’s doctor and the patient.

In a letter to MLAs in British Columbia, Ken Buchanan, chair of Positive Living BC, says the bill inadequately addresses privacy and psychological concerns of people with communicable diseases.

One HIV-positive man already has asked him about refusing emergency care, Buchanan tells Xtra.

Emergency workers have a system of universal precautions to prevent exposure, he adds, and HIV transmission from an infected person to an emergency worker is highly unlikely.

Furthermore, a positive test result would come back too late to allow an emergency worker to take anti-HIV medications within the required 72-hour period after exposure, Buchanan points out.

Provincial Health Officer Perry Kendall says that instead of testing the patient, the first responders themselves should undergo polymerase chain testing, which detects the virus itself, not the antibodies.

Kendall also says the legislation violates a patient’s right to refuse treatment and information. Other provincial health officials have opposed similar laws, first enacted a decade ago in Ontario, he says.

Kendall says the bill raises the issue of stigma. “Whose blood do I worry about? Whose blood don’t I worry about?”

The provincial privacy commission asked MacDiarmid to withdraw the bill, saying in a letter it provides no demonstrable benefit and violates privacy rights. “Removing an individual’s right to control their bodily integrity is the most intrusive form of privacy infringements.”

MacDiarmid says the polymerase chain testing may not be accurate while a person is undergoing anti-HIV treatment.

She says the bill was carefully written to avoid stigma, allowing testing merely based on a first responder’s exposure to a patient’s blood or other fluids, not based on whether the patient is believed to have a disease.

But the bill would allow forced testing only if the emergency workers have reasonable grounds to believe they were exposed to a communicable disease.

MacDiarmid, who was a family doctor for 23 years and former president of the BC Medical Association, says she understands the bill is controversial but says the first responder’s right to know outweighs the patients’ privacy.

Under the BC Medical Association’s (BCMA) code of ethics, diagnostic procedures that would help someone else, not the patients themselves, are recommended only if the patient consents or the law requires the test. The BCMA says it generally stands behind the bill but would have to know more specifics.

Each year, no more than two people in BC report that their occupation may have been one of the factors contributing to exposure to HIV, according to a BC Centres for Disease Control spokesperson.

Bronwyn Barter, president of the Ambulance Paramedics of BC, acknowledges that the law is invasive but says it would rarely be used, as patients usually voluntarily disclose infections.

She says the test results would comfort emergency workers and their families. “This is a peace-of-mind legislation,” she says.

Though the law requires a four-day notice to the patient, the delay in getting test results isn’t problematic, Barter says, because emergency workers potentially exposed to a communicable disease would have begun treatment immediately after the incident.

Discovering the status of the patient could allow doctors to change the course of, or in some cases avoid, treatment, she adds. She cites an emergency worker who had a liver dysfunction that could be exacerbated by anti-HIV treatment and a pregnant emergency worker who was concerned about side effects of treatment.

She acknowledges, however, that a negative test result could provide a false sense of security, as there’s a window when HIV isn’t detectable.

Barter says the law doesn’t allow patients to require testing of a first responder. But she would support such a requirement if the results would be confidential. MacDiarmid says this law was designed to address patients infecting first responders, not the reverse.

Barter says the law would require confidentiality and the patient wouldn’t have to be told of the result. Told by Xtra that the bill would, in fact, require patients to be informed of results, she says, “if they have something it’s good that they do know.”

A person who refuses testing could be fined up to $10,000 a day — that’s as much as $3.6 million a year.

“We wanted to put significant penalties in place,” MacDiarmid says, adding that “a lot of this will be decided by the courts.”

In one of the rare cases in which forced HIV testing came before the courts, a Quebec court in 1992 refused to force an alleged perpetrator of sexual assault to take a blood test, saying the forced testing raised serious civil rights concerns, according to the Canadian HIV/AIDS Legal Network.